Fakhru and Another v. Ali Mohd and Others

Order 21 Rules the judgment de agitated in execu Submissions of

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Lea obtained by frau sanctioned in co vitiates all judi executed. It was and a verificatio which was not wrongly refused were not mainta

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On submitted that t been adjudicate decided that the in appeal and in were also dismi he first execution had already be re barred by res judicata and amo e learned Executing Court, missed all the applications filed 8 CPC was dismissed as not mai decades earlier. The application 97 and 101 CPC were dismiss ebtors had already been adjudica ution, and that the JDs had no lo f learned counsel for the partie arned counsel for the petitioner ud on the basis of mutation No. ollusion with revenue officials. cial acts, a decree obtained by s contended that the petitioners on report from the revenue auth available earlier. It was further d to consider this material and er ainable. n the other hand, learned counsel the issue of succession and entit ed in the suit of 2013, in whi plaintiffs were the successors of n second appeal. The objections issed on 24.04.2025. Filing fresh

een dismissed, and that the pres ounted to abuse of process. by the impugned orders da by the petitioners. The applicat intainable, noting that the provis s under Section 47 CPC and un ed holding that the pleas raised ated in the suit and could not be ocus under Rules 97 and 101. s rs argued that the decree itself w . 573 dated 08.04.1986, which w It was submitted that since fra y fraud is a nullity and cannot are the only legal heirs of Saki horities now establishes their cla submitted that the executing co rred in holding that the applicati l for the respondents/decree hold tlement to the property had alrea ich the trial court considered f Sakina. This finding was affirm filed in the first execution petit h applications on identical grou

- sent ated sion nder d by re-was was aud be ina, aim, ders ady med

amounts to res j 48 CPC has bee Rule 97 is a re judgment debto

¶101Findings

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Hav no merit in the p

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As has rightly held for a bar of lim the Limitation A the Repealing an provision that is executing court

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Tur 97 and 101 CP decree. The righ issue in the ori evaluated the ev holding them e appellate court a affirmed those f the parties. judicata and abuse of process. It en repealed and no application li emedy available to a decree h r, and therefore the petitioners ving considered the rival submis present revision petition. regards the application under S it to be not maintainable. Secti itation for execution after 12 ye Act, 1963 w.e.f. 01.01.1964, and nd Amending Act, 1974. Thus, s no longer part of the statute bo committed no error in dismissin rning to the application under S C, it is settled law that the exe hts of the parties and their status iginal suit of 2013. The trial c vidence, and decreed the suit in f entitled to protection of possess and this High Court, while dism findings. Once the decree has att

was further contended that Sect ies thereunder. Moreover, Order holder facing obstruction, not t have no locus under Rules 97 a ssions and perused the record, I f ection 48 CPC, the executing co on 48 CPC, which earlier provid ears, was repealed by Section 28 d that section itself was repealed the filing of an application unde ook was wholly misconceived. T ng such an application summarily ection 47 CPC and Order 21 Ru ecuting court cannot go behind s as heirs of Sakina were directly court framed the necessary issu favour of the plaintiffs/responden sion as successors of Sakina. T missing the Regular Second App tained finality, it is binding betw

- r 21 o a find ded 8 of d by er a y. ules y in ues, nts, eal,

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during the trial Those objection the same plea ag litigation and is in case of Sush consistently held reopen issues al jurisdiction. In passed by a com fraud cannot be

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Fur in execution to a any person. The decree passed ag arising out of p foundation unde no locus under applications not

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As CPC on the gro decree on allega such discretion intended to pre proceedings. It e plea of fraud raised by the and was in fact raised in obj ns were dismissed on 24.04.2025 gain in a second execution woul barred by res judicata under Se hil Kumar Mehta v. Gobind Ra d that an Executing Court canno lready adjudicated, except where the present case, the decree i mpetent court after trial and aff entertained at the stage of execu rther, Order 21 Rule 97 CPC en approach the executing court in e judgment debtor cannot invok gainst him. Since Rule 101 emp proceedings under Rule 97, it h er Rule 97 is absent. The petitio these provisions, and the exec t maintainable. regards the prayer to stay the ound that the petitioners have fil ations of fraud, the executing co . Rule 29 confers a limited p event multiplicity where the s cannot be used by judgment de

petitioners was available to th ections during the first executi

¶5Permitting the petitioners to ra ld violate the principle of finality ection 11 CPC. The Supreme Co am Bohra, (1990) 1 SCC 193 ot go behind the decree and can e the decree is a nullity for want is not without jurisdiction; it w firmed in appeal. Thus, the plea ution. nables a decree holder or purcha case of obstruction or resistance ke Rule 97 to resist execution o owers the court to decide questi has no application where the v ners, being judgment debtors, h cuting court has rightly held th execution under Order 21 Rule led a separate suit to challenge ourt has rightly declined to exerc power, which is discretionary a same parties are litigating in t btors to stall execution of a dec

- hem ion. aise y of has nnot t of was a of aser e by of a very ave heir e 29 cise two

already affirmed an independent law, but the exe such grounds.

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In t for dismissing t not disclose an Article 227. T reappreciate evi correcting jurisd here. Conclusion

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Acc filed by the petit

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For and is hereby di

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Pen

September 12, 2 tripti

Whether s

Whether d in appeal and second appeal. I cause of action, they are at libe ecuting court cannot stay or nul the impugned orders, the execut the applications. The findings a y perversity or jurisdictional e This Court, while exercising s idence or sit as an appellate au dictional errors and patent illeg cordingly, I am of the consider tioners have been rightly dismiss r the reasons stated above, the r smissed. nding application(s), if any, also 2025

speaking/non-speaking : Speaking reportable : Yes/No

If the petitioners believe they h erty to pursue it in accordance w llify execution of a valid decree ting court has given cogent reas are in consonance with law and rror warranting interference un supervisory jurisdiction, does uthority. The scope is confined gality, none of which is made red view that both the applicati sed. revision petition is devoid of m stand disposed of. (MANDEEP PANNU) JUDGE

- ave with e on d do nder not d to out

IN T Fakhru and Ano Ali Mohd. and O CORAM : HON Present: Mr Mr MANDEEP PA 1. the Constitution passed by the le whereby two ap and another und 101 CPC read arising from jud Brief Facts 2. permanent injun from dispossess possession, and defendants cont village Pathroli and that the entr THE HIGH COURT OF PUNJ AT CHANDIGA -.- CR Re De other VERSUS Others N'BLE MS. JUSTICE MANDE r. B.S.Tewatia, Advocate for the r. Yashvardhan Goyal, Advocate -.- ANNU J. e present civil revision petition h n of India for setting aside the i earned Civil Judge (Junior Divis pplications filed by the judgment der Section 47 CPC and Order 2 with Section 151 CPC were d dgment and decree dated 28.10.2 e respondents/decree holders nction restraining the defendant sing them from the suit property d from demolishing the residen tested the claim, asserting that t but of Sekhpura, Tehsil Kama ries in the revenue records in the JAB AND HARYANA ARH R-5192-2025 (O&M) served on: 10.09.2025 cided on :- 12.09.2025 ....Petitioners ....Respondents EEP PANNU petitioners. for the respondents. has been filed under Article 227 impugned orders dated 14.07.20 sion), Ferozpur Jhirka, District N t debtors one under Section 48 C 21 Rule 97 CPC and Order 21 R ismissed in execution proceedi 013. had instituted a civil suit ts, who are the present petition y, from interfering in their peace ntial house standing thereon. T the plaintiffs were not residents (Rajasthan), for the past 50 ye ir favour were illegal. - 7 of Nuh CPC Rule ngs for ers, eful s of ars, 3. functioning as 28.10.2013, dec dispossessing or suit property an on the property. and Sessions Ju High Court was 4. order dated 24.1 decree was exe petition for enfo 5. In applications und another under S with Section 15 decree fraudule widow of Deend procured mutati although the pr basis, it was con is inexecutable. 6. applications. It e learned Civil Judge (Jun a Mobile Court at Pinangwan, creed the suit of the plaintiffs a r interfering with the peaceful p nd from demolishing their reside . The appeal filed by the defend udge, Gurugram, and the Regul also dismissed on 24.05.2018. T e decree holders thereafter filed 11.2022, the Executing Court iss cuted. Subsequently, the decree orcement of the same judgment a this second Execution Petitio der Section 48 CPC for dismi Section 47 CPC and under Orde 51 CPC. It was pleaded that th ently by concealing that they w dar. It was alleged that in collusi ion No. 573 dated 08.04.1986 resent petitioners are the only t ntended that the decree dated 28 e decree holders filed reply obje was submitted that Section 48 nior Division), Ferozpur Jhir , vide judgment and decree da and restrained the defendants fr possession of the plaintiffs over ential house or raising construct dants was dismissed by the Dist lar Second Appeal filed before Thus, the decree attained finality d their first execution petition. sued warrants of possession and e holders filed a second execut and decree dated 28.10.2013. on, the judgment debtors mov ssal of the execution petition a er 21 Rules 97 and 101 CPC r he decree holders had procured were not the legal heirs of Sak ion with revenue officials, they h in their favour by illegal mea true legal heirs of Sakina. On t 8.10.2013 was vitiated by fraud a cting to the maintainability of th CPC had long been repealed, t - rka, ated rom trict y. By ved read kina had ans, this hese objections to th applications wer 7. 14.07.2025, dism under Section 4 stood repealed d